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Tesco document disclosure ruling will make parties “think twice” about cooperating with SFO

Tesco document disclosure ruling will make parties “think twice” about cooperating with SFO

14Feb2019

BCL partner, Richard Sallybanks speaks to James Thomas of Global Investigations Review (GIR) about the possible repercussions of a UK judge’s decision to force retailer Tesco to hand over documents in a civil case that it obtained from the Serious Fraud Office (SFO) in a separate criminal matter.

‘The material Tesco has been ordered to hand over mostly includes interview transcripts and witness statements that the SFO acquired from third parties under section 2 of the Criminal Justice Act 1987, which gives the authority the power to compel an individual or entity to provide information that is deemed relevant to an investigation.

Lawyers said Hildyard J’s decision means that individuals in compelled interviews will be caught between a rock and a hard place because their forced testimony may end up in the hands of third parties.

“Most individuals are compelled to speak, or provide information, to the SFO under section 2 notices, so it’s not as if they have a choice in the matter,” said Richard Sallybanks at BCL Solicitors. He said that following the ruling, individuals will be put on notice that documents, excluding confidential personal information, may be disclosed in a civil case if deemed relevant.

Sallybanks also said that Hildyard J’s may also make companies reluctant to receive extensive material from the SFO during the DPA process because it may end up in a third party’s hands.’

Richard Sallybanks specialises in complex business crime and regulatory defence work. Richard has been involved in numerous SFO, FCA, HMRC & CMA investigations and prosecutions, together with associated restraint and confiscation proceedings. His recent SFO experience includes the Alstom, Barclays Qatar, and Tesco investigations (acting for senior individuals under suspicion), as well as acting for Robert Tchenguiz in the SFO’s Kaupthing Bank investigation (including the successful Judicial Review challenge to SFO search warrants). Richard has acted in a number of FCA criminal and regulatory investigations for brokers, traders and senior executives, including in relation to allegations of insider dealing and market abuse. He is experienced in cartel investigations, both domestic investigations conducted by the CMA and cross-border anti-trust investigations (including those conducted by the US DoJ). Richard is also experienced in the international mutual legal assistance regime, and in leading and co-ordinating teams of lawyers in multi-jurisdictional investigations.